EAN Travel Agency Marketing Agreement-US

EAN TRAVEL AGENCY MARKETING AGREEMENT

Welcome to the Expedia Affiliate Network’s Travel Agent marketing program ("Program"). This Program enables qualified travel agencies to

access www.agentrez.com and the travel services provided through the Expedia Affiliate Network.
market the travel offerings available through the AgentRez booking tools to their customers
make bookings on behalf of those customers; and
earn marketing fees

all under the terms and conditions set out below. Please read these terms and conditions carefully. By ticking below to agree to the terms and conditions, the travel agency which you represent is signifying its agreement to be bound by the terms and conditions of this Agreement for its participation in the Program.

The Agreement is made and entered into as of the date on which you are issued with a Client Identification Number (CID) in accordance with the Agreement (as described below)("the Effective Date") by and between IAN. com L.P., a Delaware limited partnership (EAN), and the travel agency which you represent, the details of which you have provided to EAN through this website by completing the application form on this page ("Travel Agent"). This Agreement can be downloaded or accessed at http://www.agentrez.com/eanagentagreement-en-us.html and the Travel Agent is recommended to print off and keep a copy for its records.

A. TRAVEL AGENT OBLIGATIONS

1 Marketing. During the term of this Agreement, Travel Agent shall where Travel Agent deems it suitable for its Customers: (i) actively market and promote the travel offerings available through the AgentRez Tools (as defined below) to its Customers; and (ii) display Promotional Materials (where provided) in order to generate the maximum number of Transactions by Customers through the AgentRez Tools. 'Customer' means an individual for whom Travel Agent undertakes the booking of a Transaction through the AgentRez Tools during the term of this Agreement. 'AgentRez Tools' means the website at www.agentrez.com (the AgentRez Site) and the telephone number, if any, provided to Travel Agent which enables Customer bookings to be made (the AgentRez Number). 'AgentRez' means user interfaces, the software code, informational databases, products, and other components that make up, or are otherwise required to operate, EAN's service which is to enable users to shop for, reserve, book and pay for certain travel services via a personal computer (or other interactive device) connected to the Internet or any other network or through an offline call centre number provided by EAN, and any additional, follow-on, successor or replacement versions of such service, whether offered under the EAN name or otherwise.

2 Access to AgentRez Tools. Travel Agent shall access and use the AgentRez Tools in a manner consistent with the guidelines provided by EAN from time to time, a current version of which are contained in Schedule 2 - ‘Guidelines for AgentRez Users’ (“Guidelines”). Travel Agent acknowledges and accepts that failure to comply with EAN’s specification for access to the AgentRez Tools will result in the non-accrual of Marketing Fees (as defined in, Schedule 1) to Travel Agent’s account, including without limitation where the relevant Transactions cannot be associated with Travel Agent’s access to the AgentRez Tools to EAN’s satisfaction. “Transaction(s)” means the booking of travel offerings through the AgentRez Tools on behalf of Customers by Travel Agent.

3 Use of Travel Agent Account. Travel Agent shall use the Travel Agent Account (as defined in Clause B1) to access the AgentRez Tools and input or otherwise provide Customer Data (as defined in Clause B6) solely for the purposes of booking travel offerings on behalf of Customers. Travel Agent shall remain liable to EAN for monies which it has failed to collect in accordance with the terms of this Agreement and EAN’s booking terms and conditions as available from time to time through the AgentRez Tools (“Booking Terms and Conditions”). Travel Agent shall ensure that the Customer Data and any other information submitted through the AgentRez Tools is complete and accurate.

4 Customer Contracts. Prior to the completion of a Transaction, Travel Agent shall:(i) make clear to Customers that EAN, an EAN Corporate Affiliate (as defined in Clause K) or the applicable travel service provider provides the travel service directly to the Customer and shall not display or make any statement which expressly or by implication contradicts this proposition;(ii) make clear to the Customer that any fee charged by Travel Agent for facilitating the Transaction ("Booking Fee") is charged by and payable to Travel Agent and not EAN or an EAN Corporate Affiliate;(iii) communicate to Customer and ensure that they have read and accept the Booking Terms And Conditions applicable to such Transaction ("Booking Terms and Conditions"). (iv) communicate fully and accurately to the Customer the description as made available by EAN of the travel offerings to which the Transaction relates; and(vi) ensure that the Customer has sufficient funds available to cover the Transaction cost. Travel Agent undertakes not to make any verbal or written assurances to a Customer which are additional to or contradict the Terms, including without limitation by promising that any special requests will be met. Travel Agent shall be solely responsible and liable in respect of any representations, or special request confirmed or made to the Customer without EAN's prior written authorisation and approval. Where Travel Agent collects payment from the customer for EAN travel offerings, Travel Agent shall include the following text in its booking terms and conditions in respect of EU Merchant Room bookings: “Supplies of EU Merchant Hotel Rooms are provided to you by Travelscape, LLC whose business is located in the US. Therefore, no EU VAT is chargeable”. Affiliate shall not, at any time, display or make any written or verbal statement or procure the display or making of any such statement, in the terms and conditions or elsewhere which expressly or by implication contradicts this proposition.

5 Customer Communications and Complaints. Travel Agent shall within 24 hours of receipt: (i) provide to Customer, without modification or deletion, all information received from EAN relating to a Transaction (e.g., the EAN booking confirmation emails and other customer support communications); and (ii) provide to EAN without modification or deletion all communications relating to a Transaction (e.g., further booking requests and other customer service inquiries) or complaints (including any complaint to consumer protection or similar organizations or any regulatory trade body) received in relation to a booking or a Customer. In particular, Travel Agent shall inform Customers of any obligation to pay cancellation or amendment charges where that Customer requests the cancellation or amendment of the Transaction. Travel Agent will be solely liable for any variation between the cancellation policies provided to Travel Agent by EAN and those that are communicated by Travel Agent to Customer. Travel Agent shall notify EAN within three (3) days of Travel Agent's receipt of any Customer formal complaint, claim or action regarding a Transaction. Travel Agent acknowledges and agrees that EAN or its Corporate Affiliates shall have the right to attempt to settle any such formal complaint, claim or action directly with the Customer. If EAN attempts such a settlement Travel Agent shall provide EAN with reasonable information and assistance, at EAN's expense, to help EAN to reach settlement and Travel Agent shall refrain from taking any other action in respect of the relevant formal complaint, claim or action. If EAN is able to reach a settlement, Travel Agent shall cooperate fully in finalising such settlement including, without limitation, executing any documents which EAN reasonably deems necessary for such purpose. Travel Agent acknowledges and agrees that EAN shall have no liability to Travel Agent in respect of any formal complaint, claim or action regarding a Transaction where Travel Agent does not act in accordance with this Clause.

6 Customer Incentives. Travel Agent shall not be entitled to take advantage of customer incentives for the Travel Agent’s own use and enjoyment. Customer incentives include but shall not be limited to: loyalty points, frequent flyer miles or any promotional voucher or offer attached to particular bookings which may be made available in the booking path (“Customer Incentives”). Travel Agent shall assist Customers to redeem Customer Incentives made available in relation to the Customer booking for use and enjoyment by the Customer as necessary.

7 Customer Care. Travel Agent shall be responsible for first line Customer support in relation to Transactions and shall facilitate the provision of information available on the AgentRez Site in relation to any particular Transaction to Customers. In addition, Travel Agent shall facilitate the provision of customer care and support by EAN to the Customer in relation to booking amendments or cancellations or any other Customer support function which cannot be managed via the AgentRez Site.

8 Fraud. Travel Agent shall be responsible for the fraudulent use or any other misuse of credit cards by means of which Transactions are completed, regardless of whether such credit cards belong to Travel Agent or to the Customer or to any other person.

9 General Prohibitions. In no event shall Travel Agent or its agents (i) place or attempt to place references to EAN, EAN Corporate Affiliates, or the Program on or in: publications or offline advertisements without written authorisaton from EAN; (ii) use unsolicited communications, including faxes, e-mails, SMS or MMS; instant messages, or (iii) cause or attempt to cause any Transactions to be made without the Customer’s full knowledge and consent.

10. Compliance with Laws. Travel Agent shall comply with all applicable laws and regulations in force from time to time relevant to the performance of its obligations under this Agreement.

B. EAN OBLIGATIONS

1. Travel Agent Application, Travel Agent Account and Affiliate Tracking Code. Following Travel Agent application to join AgentRez EAN will perform a preliminary business review of the Travel Agent’s applicationfollowing which, if the review is satisfactory to EAN in its sole discretion, EAN will provide Travel Agent by electronic mail with an AgentRez Account number (CID) . 'AgentRez Account Number' means the Travel Agent identification code attached to the Travel Agent Account(s) used by Travel Agent through which EAN will track the bookings made via the AgentRez Tools. 'Travel Agent Account(s)' means the unique Username and password used by Travel Agent to access the AgentRez system available through the AgentRez Site.

2. Site Access. EAN shall provide Travel Agent with access to the AgentRez Site to enable Travel Agent to provide the marketing services described in Clause A1.

3. EAN Promotional Materials. EAN shall from time to time during the term of this Agreement, and at its sole discretion provide to Travel Agent certain EAN branded promotional items for use at Travel Agent’s premises (“EAN Promotional Materials”). EAN may introduce or withdraw EAN Promotional Materials for use by Travel Agent at any time.

4. Grant of License by EAN. Subject to the terms and conditions of this Agreement, EAN hereby grants to Travel Agent a limited, non-exclusive license to display in-store the EAN Promotional Materials which may be provided by EAN to Travel Agent from time to time and to display and reproduce the Booking Terms and Conditions and booking confirmation emails sent by EAN to Travel Agent for use by Customers.

5. Customer Support and Fulfilment. EAN shall use commercially reasonable efforts to provide, or procure to be provided, customer support and fulfilment services to Travel Agents and to Customers during the same hours and at the same level of service and functionality that EAN provides, or procures to be provided, to its customers booking outside the Travel Agent Program in the same geographic region. Travel Agent acknowledges that EAN reserves the right to refuse to provide customer/fulfilment services to a Customer, in its sole discretion, for a variety of reasons, including but not limited to: (i) rejection by applicable credit card company; (ii) inability to authenticate credit card; (iii) inability to authenticate card holder; and (iv) Customer’s history with EAN and/or any EAN Corporate Affiliate (as defined in K).

6. Ownership of Customer Data. Nothing in this provision shall prevent Travel Agent from collecting, using or otherwise processing data provided to it by Customers, provided that it does so in accordance with all relevant laws and regulations relating to privacy and data protection. 'Customer Data' means information in respect of Customers that Travel Agent provides to EAN in connection with the provision of the customer and fulfillment services pursuant to this Agreement. All right, title and interest in the Customer Data provided to EAN will be owned by EAN or its Corporate Affiliates. C. PAYMENTS

1. Payment Process. In accordance with Schedule 1, during the term of the Agreement Travel Agent will receive monthly payments of Marketing Fees for all bookings Consumed during the previous month, regardless of the date of booking. For the avoidance of doubt, Marketing Fees shall only be paid on Consumed Transactions. Save as provided in this Clause or Schedule 1, EAN or its reporting agent shall remit all Marketing Fees payments owed to Travel Agent, subject to Travel Agent’s election, either by means of an electronic transfer to Travel Agent’s bank account as submitted when applying for access to the Program or by USD check posted to the Travel Agent’s registered address. Whilst Marketing Fees will continue to accrue, EAN will only remit payment for any calendar month where the amount of Marketing Fees accrued is at least $50.00 (fifty US Dollars); provided that in the calendar month ending on the last day of December EAN shall remit payment of all Marketing Fees then accrued (subject to any other adjustments) during the year regardless of amount. EAN may withhold Marketing Fees due to Travel Agent under the Agreement and credit such amounts payable towards offsetting or recouping any amounts owed by Travel Agent as a result of the payment in error by EAN of Marketing Fees on prior Transactions which are subject to Clause C2.

2. Invalid Transactions. EAN shall be entitled to immediate annulment and (where applicable) repayment of Marketing Fees relating to “Invalid Transactions.” An Invalid Transaction shall be a Transaction which in whole or in part: (i) is cancelled; (ii) is, in EAN’s reasonable opinion, fraudulent; (iii) results in a chargeback for any reason (including, without limitation, fraud, duplicated or other errors in payment processing or a credit not processed); or (iv) relates to any conduct of Travel Agent which breaches this Agreement.

D. VAT AND WITHOLDING TAX

1. It is the current understanding of the parties that the Marketing Fees set out in Schedule 1 are not chargeable to VAT in the EU.

2. All sums payable or deemed to be payable by Travel Agent to EAN or an EAN Corporate Affiliate under this Agreement shall be deemed to be exclusive of any VAT chargeable on the supply or supplies for which such sums are the consideration for VAT purposes. An amount equal to such VAT shall in each case be paid by Travel Agent to EAN or the relevant EAN Corporate Affiliate. All sums payable or deemed to be payable by EAN or an EAN Corporate Affiliate to Travel Agent under this Agreement shall be deemed to be inclusive of any VAT chargeable on the supply or supplies for which such sums are the consideration for VAT purposes.

3. In this Agreement 'VAT' means the tax imposed by Council Directive 2006/112/EC of the European Community and any national legislation implementing that Directive together with legislation supplemental thereto, or any similar sales or turnover tax in any country.

4. Withholding Taxes. Before EAN makes payments to the Travel Agent, EAN needs to assess whether or not there is a requirement to withhold U.S. tax. If Travel Agent meets the following three requirements, a simple waiver form is required to be submitted online through the AgentRez account management page:

(i) Travel Agent is not a tax resident of the U.S.A.

(ii) Travel Agent does not carry on a U.S.A. trade or business or have a U.S.A. taxable presence for which payments received from EAN could be attributed.

(iii) The services performed by Travel Agent for which the payment from EAN relates, are not performed inside the U.S.A.

By entering into this Agreement, Travel Agent certifies that each of the requirements at 4 (i) (ii) and (iii) are met. In the event that any of the requirements are not met, the Travel Agent shall provide EAN the following IRS Form(s) for its records, duly completed and signed by the Travel Agent, prior to invoicing EAN for Marketing Fees: W-9 (if the first requirement is not met), and/or W-8ECI (if the second requirement is not met), and/or W-8BEN (if the third requirement is not met). Such forms shall be kept on file at EAN. Travel Agent shall provide EAN with an updated version of the applicable IRS Form(s) W-9, W-8BEN or W-8ECI every year of the Term and shall promptly notify EAN of any circumstance that impacts the validity of the information previously provided on IRS Form W-8. If Travel Agent does not comply with its obligations under this Clause, EAN shall be entitled to deduct and withhold Commission payment to the Travel Agent in order to comply with its obligations under to U.S. tax laws. All amounts withheld by EAN pursuant to this Clause shall be treated as paid to the Travel Agent for purposes of Clause 2 of Schedule 1 of this Agreement.

E. TERM

This Agreement will commence on the Effective Date and, unless terminated earlier as provided herein, shall continue from the Effective Date until either party gives notice in accordance with the provisions of Clause G.

F. AGENTREZ SITE AND EAN CONTENT

1 Ownership of AgentRez Site, EAN and AgentRez Marks and EAN content. EAN or its Corporate Affiliates shall own all intellectual property rights (including, without limitation, all copyrights, patents, trademarks and trade secrets) in connection with and in (i) all versions of the AgentRez Site and (ii) the EAN Marks. “EAN and AgentRez Marks” shall mean EAN’s trade names, trade marks, service marks, and/or other visual representations thereof, including logos, designs, symbols, word marks, images, colors and color combinations, trade dress, characters and other publicity rights, or other indicia of ownership owned or used by EAN. Travel Agent acknowledges that the AgentRez Site, EAN content and the EAN Marks are owned by EAN or its Corporate Affiliates and their use by Travel Agent in connection with this Agreement inures to the benefit of EAN or its Corporate Affiliates and nothing herein will grant any ownership interest in the elements of the AgentRez Site, EAN content and the EAN Marks to Travel Agent.

2. Content Protection. The AgentRez Tools and the technology and infrastructure used to provide content to each of them are proprietary to EAN or EAN Corporate Affiliates. Accordingly, notwithstanding anything herein to the contrary, without the express, written permission of EAN, which may be denied or granted in its sole discretion, Travel Agent will not, directly or indirectly: (a) access, search, scrape, crawl or monitor the AgentRez Site or copy, extract, use, modify, or repurpose any content or information thereon (including, without limitation, price or availability information for any travel product or service), for any purpose or by any means (e.g., robot, spider, scraper or any other automated or manual means); or (b) deep-link to any portion of the AgentRez Site. In addition, Travel Agent will not, directly or indirectly: (i) violate the restrictions in any robot exclusion headers on the AgentRez Site or bypass, circumvent, or avoid any measure employed to prevent or limit access to the AgentRez Site, including the content and information thereon; or (ii) take any action that, in EAN’s sole discretion, imposes or might impose an unreasonable or disproportionately large load on the technology or infrastructure of the AgentRez Site.

3. Trademark Protection. Except for the limited license granted in Clause B4 above, Travel Agent is prohibited from using or displaying (directly or indirectly), and agrees not to use, display, or reference (directly or indirectly), any URL, trade name, trademark, logo, or branding of EAN or EAN Corporate Affiliates in any manner whatsoever (including, without limitation, in any meta-tags, search engine advertising, marketing or optimization, any other online or offline marketing or advertising, press releases, etc.) without the express, written permission of EAN or its applicable EAN Corporate Affiliates which may be denied in the sole discretion of EAN or such EAN Corporate Affiliates. All rights not expressly granted are reserved by EAN or EAN Corporate Affiliates. Travel Agent acknowledges and agrees that any breach of this Clause will result in irreparable harm to EAN and/or EAN Corporate Affiliates, as well as damages that are difficult or impossible to calculate. Travel Agent agrees that compliance with Clause may be specifically enforced in any court of competent jurisdiction, without prejudice and in addition to EAN’s and/or EAN Corporate Affiliates’ right to seek damages or other remedies for any such breach.

G. TERMINATION; TERMINATION OBLIGATIONS

1. EAN in its sole discretion and without cause may terminate this Agreement immediately upon written notice to Travel Agent. Travel Agent may terminate this Agreement on 30 days’ written notice to EAN. The rights and remedies provided in this Clause are not exclusive and are in addition to any other rights and remedies provided by law or this Agreement.

2. In addition to any other rights and remedies, either party may, by giving written notice to the other party, terminate this Agreement on the following grounds: (i) where either party goes into voluntary or involuntary liquidation; (ii) where either party is declared insolvent either in bankruptcy proceedings or other legal proceedings; (iii) where an agreement with creditors has been reached by either party due to its failure or inability to pay its debts as they fall due; or (iv) where a receiver, administrator, administrative receiver or other encumbrancer is appointed over the whole or part of either party's business.

3. Any notice of breach or default hereunder shall be prominently labelled “NOTICE OF DEFAULT,” and if to EAN, shall be copied to EAN’s legal department, attention General Counsel.

4. Upon termination or expiration of this Agreement for any reason: (i) Travel Agent shall immediately cease (i) using the AgentRez Account and making bookings through the AgentRez Account Number and the EAN Promotional Materials and (ii) Travel Agent Account shall be shut down immediately by EAN.

5. Notwithstanding anything to the contrary in this Agreement, the following provisions shall survive termination of this Agreement: Clauses H1 to H3 and I through to M inclusive.

H. REPRESENTATIONS AND WARRANTIES

1. Each party hereby represents and warrants as follows: (i) it is duly organized and validly existing under the laws of the place of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder; (iii) this Agreement is a legal and valid obligation binding upon it and enforceable with its terms; and (iv) the execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.

2. Travel Agent hereby represents and warrants as follows: (i) it is a travel agency regulated by and operated in compliance with the laws of the country in which it is established and, if applicable, in each country in which it actively markets its services; (ii) it possesses all applicable licenses and documentation necessary to perform travel agency services in each such country (iii) the individual entering into this Agreement on behalf of the Travel Agent has the power, capacity and authority to enter into and bind the Travel Agent to observe its obligations under this Agreement and such individual on his own behalf so represents and warrants and (iv) that it is not, and any beneficial owner of it is not, incorporated in or resident of a country subject to economic or trade sanctions by the US Treasury Department’s US Treasury Office of Foreign Asset Control (“OFAC”) or listed as a 'Specially Designated National' a 'Specially Designated Global Terrorist', a Blocked Person, or similar restrictive designation under the OFAC sanctions regime.

3. The representations and warranties and covenants set out in this Agreement are continuous in nature and shall be deemed to have been given by each party at execution of this Agreement and at all times thereafter.

I. LIMITATION OF WARRANTY.

EAN MAKES NO, AND HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED, WHETHER IMPLIED BY STATUTE, COMMON LAW, CUSTOM, COLLATERALLY OR OTHERWISE, REGARDING THE AGENTREZ TOOLS INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

J. INDEMNIFICATION.

Travel Agent shall at EAN’s request, defend any third party claim or action brought against EAN, and EAN Corporate Affiliates and related companies, and all of their respective directors, officers, employees, licensees, agents and independent contractors, (i) arising out of or related to Travel Agent’s use of the Travel Agent Account; (ii) arising out of or related to the information submitted by Travel Agent through the AgentRez Tools; (iii) arising out of or related to any breach of Clause A above; (iv) arising out of or related to any handling by Travel Agent of data, records and information under Clause A above; (v) arising, directly or indirectly, from or in connection with the fraudulent use of the credit cards as set out in Clause A above; (vi) arising from any claim that, if true, would constitute a breach of a Travel Agent warranty, representation or covenant set forth in this Agreement; (all such claims collectively being “Travel Agent Claims”) and Travel Agent shall indemnify and hold EAN and EAN Corporate Affiliates and related companies harmless from and against any costs, damages and fees reasonably incurred by EAN and EAN Corporate Affiliates, including but not limited to fees of legal advisers (on a solicitor-client basis) and other professionals, that are attributable to such Travel Agent Claims. EAN shall have the right to approve the counsel selected by Travel Agent for defence of Travel Agent Claims. EAN shall provide Travel Agent reasonably prompt notice in writing of any such Travel Agent Claims and provide Travel Agent with reasonable information and assistance, at Travel Agent’s expense, to help Travel Agent to defend such Travel Agent Claims. Travel Agent shall not have any right, without EAN’s written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of EAN or EAN Corporate Affiliates or otherwise requires EAN or EAN Corporate Affiliates to take or refrain from taking any material action (such as the payment of fees).

K. LIMITATION OF LIABILITY.

EXCEPT FOR A PARTY'S LIABILITY FOR THIRD PARTY CLAIMS AS SPECIFIED IN CLAUSE J OR EITHER PARTY'S BREACH OF CLAUSE L OR TRAVEL AGENT’S BREACH OF CLAUSE A4, TO THE FULLEST EXTENT PERMITTED BY LAW IN NO EVENT SHALL EITHER PARTY OR ITS CORPORATE AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS CORPORATE AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EAN AND/OR EAN CORPORATE AFFILIATES BE LIABLE TO AFFILIATE OR ANY THIRD PARTY FOR: (I) ANY DAMAGE RESULTING FROM AN ERROR OR INTERRUPTIONS OF THE PROVISION OF THE AGENTREZ TOOLS; OR (II) AN AMOUNT GREATER THAN THE AGGREGATE AMOUNTS PAID BY EAN. NOTHING IN THIS AGREEMENT LIMITS EITHER PARTY’S LIABILITY FOR: (A) PERSONAL INJURY OR DEATH CAUSED BY NEGLIGENCE; OR (B) FRAUD. “CORPORATE AFFILIATE” MEANS ANY PERSON, PARTNERSHIP. JOINT VENTURE, CORPORATION OR OTHER FORM OF ENTERPRISE, DOMESTIC OR FOREIGN, INCLUDING BUT NOT LIMITED TO SUBSIDIARIES THAT DIRECTLY OR INDIRECTLY CONTROL, ARE CONTROLLED BY, OR ARE UNDER COMMON CONTROL WITH A PARTY TO THIS AGREEMENT.

L. CONFIDENTIALITY; MEDIA COMMUNICATIONS, DATA PROTECTION

1. In performing their obligations under this Agreement, EAN and Travel Agent will each disclose to the other confidential and proprietary information. The parties agree that the recipient of any such confidential or proprietary information of the other party will use such confidential information solely for the purposes for which it is provided by the other party, will not disclose such confidential information to any third party, and will protect such confidential information from unauthorized use and disclosure; provided, that the foregoing obligations will not apply to any (i) information that becomes generally publicly available through no fault of the recipient, (ii) information that the recipient obtains from a third party (other than in connection with this Agreement); (iii) information that is independently developed or acquired by the recipient; (iv) disclosure with the prior written consent of the disclosing party; or (v) disclosures which are required by applicable law. Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order. For the purposes of this Agreement, any entity that controls, is controlled by or is under common control with a party will not be considered a third party.

2. Travel Agent shall not release to the public any press release or other communication to the press and/or public regarding this Agreement without EAN’s prior written consent.

3. The Parties agree that EAN and/or its Corporate Affiliates shall process any and all personal data that it receives and processes pursuant to this Agreement only for the purposes of performing this Agreement and in connection with fulfilling any of its regulatory responsibilities. Travel Agent shall ensure that it has obtained the relevant consents and permissions from customers in order to allow EAN and/or its Corporate Affiliates to process such customers’ personal data in accordance with this Section. EAN and/or its Corporate Affiliates will not process personal data except in accordance with applicable law. Travel Agent shall at all times act in accordance with applicable law in respect of such personal data. Each Party shall implement appropriate technical and organizational security measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access. Such measures will be no less stringent as a Party generally applies to its own data of similar nature.

4. When Travel Agent joins and uses AgentRez, EAN may collect information about Travel Agent that includes personally identifiable information that is necessary to conduct business, such as name, phone number, email address, social security number, and/or tax ID number. Payments made to to Travel Agent may require the provision of and certain collection of personally identifiable information that may include bank account information and credit card numbers. Phone numbers may be used to contact Travel Agent for support purposes. All information collection is explicit, voluntary, and manually entered by the Travel Agent.

5. 'Cookies' are files (e.g. flash browser objects or http headers) that are stored on your web-enabled client (such as your web browser). Cookies are used to improve the experience for Travel Agents using AgentRez. Cookies are also used to simplify Travel Agent login and to facilitate secure navigation through the password protected areas of the website. Cookies may also be used to optimize and personalize the Travel Agent's experience and allow EAN to monitor log ins and site traffic patterns. Travel Agents who choose to reject all cookies may not be able to use the Agent Rez site.

6. Travel Agent information is not shared with any third party outside EAN, its Corporate Affiliates and their respective service providers who require the information as necessary to conduct the AgentRez business and permit EAN to perform its obligations under this Agreement or as required by law. In the event that EAN is acquired by or merged with a third party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.

7. By providing information to us, Travel Agent acknowledges that EAN and its Corporate Affiliates operate in the United States where data protection laws may not be as protective to Travel Agent as the laws of the country where Travel Agent is located. Travel Agent agrees to (i) the transfer and use Travel Agent’s information anywhere necessary, including across international boundaries, to effect the services and transactions provided by this Site; and (ii) that such use by us shall be subject to the terms and conditions stated in this Agreement.

M. GENERAL

1. Force Majeure. If the performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance, except for the making of payments hereunder, to the extent of such prevention, restriction or interference.

2. Effect of Economic Conditions. In the event EAN deems, in EAN's sole discretion, that military or terrorist action or extraordinary political, economic, or other conditions or occurrences beyond EAN's control significantly impact the travel business, EAN's businesses, access or navigation to the AgentRez Tools, EAN may, at any time, suspend performance (in part or whole) of any or all of the terms and conditions of this Agreement, suspend payment due hereunder (in part or whole) or terminate the Agreement (in part or whole), at EAN's sole discretion. EAN shall provide Travel Agent with written notice five (5) days prior to the effective date of such suspension or termination.

3. Notices; Requests. Subject to Schedule 1, all notices and requests in connection with this Agreement may be sent by electronic mail. Correctly addressed notices sent by electronic mail shall be deemed to have been received instantaneously on transmission. Notices and requests shall be addressed to Travel Agent as per the electronic mail address details submitted when applying for access to the Program and to EAN as follows: info@agentrez.com or to such other address as EAN designates by written notice to Travel Agent. The parties acknowledge and agree that EAN may archive an electronic copy of the fully executed Agreement, and further agree that any request made to EAN for a copy of this Agreement may be fulfilled in electronic form.

4. Assignment. Neither party may assign, transfer, subcontract, novate or create a trust in respect of this Agreement, or any portion thereof, to any third party unless the other party expressly consents to such assignment in writing; provided, however, that EAN may assign its rights and/or novate obligations under this Agreement to an EAN Corporate Affiliate without obtaining further consent from Travel Agent. Any attempted assignment, transfer, etc. in violation of this Clause shall be null and void. For the purposes of this Agreement, a merger, consolidation, or other corporate reorganization, or a transfer or sale of a controlling interest in a party’s stock, or of all or substantially all of its assets shall not be deemed to be an assignment. However, in the event that Travel Agent becomes acquired by or falls under the control of any person reasonably considered by EAN to be a competitor, then EAN shall be entitled to terminate this Agreement immediately on written notice. Subject to the limitations set forth herein, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.

5. Severability. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall enter into good faith discussions on the modifications which might be necessary to make them enforceable.

6. Entire Agreement; Modification; No Offer. The parties hereto agree that this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, merges all prior and contemporaneous communications and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing (electronic or other medium) or oral, relating to such subject matter save for fraudulent misrepresentations. Save as permitted under Schedule 1, it shall not be modified except by a written agreement dated subsequent hereto signed on behalf of Travel Agent and EAN by their duly authorized representatives. Neither this Agreement nor any written or oral statements related hereto constitute an offer, and this Agreement shall not be legally binding until accepted by EAN. Nothing in this Clause shall limit liability for fraud.

7. Relationship of the Parties; Independent Contractors. Each party is an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, mandate, partnership, principal-agent or employment relationship between the parties. No party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other and neither shall have any power or authority to bind the other or to assume or create any obligation or responsibility express or implied on the other’s behalf or in its name, nor shall either represent to any one that it has such power or authority.

8. Translation. The language of this Agreement is English. A translated version of this Agreement into any other language, where provided, is for information purposes only. In the event of any discrepancy between the English original and a translation of this Agreement, the English version shall prevail and be conclusive.

9. Governing Law; Venue This Agreement shall be construed and controlled by the laws of Washington State, USA, and each party further consents to the exclusive jurisdiction of the courts of King County, Washington, USA. Process may be served on either party by first class mail, postage prepaid, or by hand.

Schedule 1

MARKETING PAYMENTS

1. Definitions: All capitalized terms, where not defined herein, have the meanings set forth elsewhere in the Agreement. For the purposes of this Schedule, the following capitalized terms will have the meanings set forth below.

'Consumed' means in the context of an accommodation booked through the Travel Agent's AgentRez Account Number, an accommodation stay for which the check out day of such stay has occurred. 'Industry Standard Commission Rate' means the generally accepted travel agency commission rate in effect in the United States with respect to the particular type of travel product or service. For example, as of the Effective Date, the Industry Standard Commission Rate is eight percent (8%) of the room rate with respect to agency hotels. The Parties acknowledge that the Industry Standard Commission Rate is subject to change and that changes in the Industry Standard Commission Rate will not be grounds for termination of any part of this Agreement. 'Merchant Room' means to any EAN lodging booking through the Travel Agent's AgentRez Account Number for which the rental rate is contracted in advance by EAN or its Corporate Affiliate on a net rate basis. 'Merchant Net Booking Value' means the aggregate amount charged to the customer for any booking of a Merchant Room, excluding taxes, tax recovery charges, service fees and customer adjustments.

2. Payments for Marketing of EAN Travel Offerings

2.1 During the Term, EAN will pay to Travel Agent marketing fees for bookings of EAN travel offerings provided to customers through Travel Agent’s AgentRez Account Number based on revenue solely from Consumed bookings on the following basis. For the avoidance of doubt, all of the EAN travel offerings may not be made available. Where available and provided to customers through Travel Agent’s AgentRez Account Number, marketing fees will be calculated on the following basis:

Merchant Rooms: 10% of the Merchant Net Booking Value on Consumed bookings when booked online; 5% when booked by phone.
Agency or GDS rooms: 50% of the commission actually received by EAN (or its Corporate Affiliate).
Agency Car hire: 50% of the commission collected by EAN (or its Corporate Affiliate).
Flights: US $ 0.00 per air booking transaction

In addition to the above, Travel Agent will be entitled to retain:

All service fee revenue imposed by Travel Agent in connection with the offer (if any) of EAN travel offerings.
Administrative credit card fees (if any) imposed by Travel Agent in connection with the offer of EAN travel offerings. Travel Agent may, in its discretion and subject to its compliance with all relevant, laws, regulations and credit card association rules relating to the imposition and retention of such credit card fees, decide the amount of such fee (if any) provided that the fee shall at all times be, reasonable, in line with the prevalent practice of, and competitive with similar fees levied by, providers of travel products in the region in which the Travel Agent is offering the EAN travel offerings.

2.2 All payments made to Travel Agent under this Agreement are inclusive of any VAT and/or sales, use, turnover or other taxes chargeable on the supply or supplies for which such sums are the consideration for the purposes of such tax or taxes.

2.3 If and to the extent that EAN (and/or its Corporate Affiliate) is deemed to make a supply to Travel Agent for VAT purposes and VAT is or becomes chargeable in respect of such supply, the consideration for such supply shall be deemed to be VAT exclusive. In addition to any other consideration for such supply, Travel Agent shall pay to EAN (and/or EAN's Corporate Affiliate) a sum equal to the amount of any VAT chargeable.

2.4 The Parties anticipate, and shall use all reasonable endeavours to secure, that the Marketing Payment is not chargeable to VAT in any EU member state. Travel Agent shall charge VAT on any supplies it makes to EAN only if and to the extent that a tax authority in the EU assesses such supplies to VAT.

2.5 Travel Agent shall not issue any invoices which expressly or implicitly state that the Travel Agent is making a supply of an EAN travel offering, whether on a standalone basis or as part of a package, to the customer.

2.6 Notwithstanding any other provision to the contrary herein, Travel Agent shall be responsible for any and all taxes, duties and impositions imposed on Travel Agent resulting from this Agreement, including interest and penalties thereon and additions thereto.

3. Payment Timing. EAN will pay to Travel Agent by the fifteenth (15th) of each month the Marketing Payment due to Travel Agent for all EAN travel offerings Consumed during the previous month. If Travel Agent opts to be paid by bank transfer, then payment will be made in one of the currencies made available from time to time by EAN for payment of Marketing Payment, such currency to be mutually agreed by the Parties. In the absence of mutual agreement, payment will be made in US dollars. If made by check, payment will be in USD. Notwithstanding anything to the contrary in this Agreement, Travel Agent will not be entitled to any Marketing Payments resulting from transactions that are subsequently cancelled, refunded, charged back, disputed by the Customer, result from fraudulent or other unlawful activity, or for which EAN does not receive payment (collectively, 'Void Transactions'. EAN may deduct and offset any Marketing Payments previously made to Travel Agent for such Void Transactions from subsequent Marketing Payments paid to Travel Agent. In relation to any international bank transfer for the payment of Marketing Payments (“Bank Transfer”), EAN shall be responsible for the fees (if any) relating solely to the sending of such Bank Transfer, and Travel Agent shall be responsible for any other fees or charges (if any) imposed by any institution for the receipt of such Bank Transfer.

4. Variation of Marketing Fee Rates. Travel Agent acknowledges and agrees that EAN may, from time to time in its sole discretion and without requiring the further consent of Travel Agent, vary the Marketing Fees set out in this Schedule 1. If EAN makes such a variation it shall notify Travel Agent of its decision in writing (which notification may be by email). If EAN makes such a notification, the new rates of Marketing Fees shall apply from the first day of the next calendar month following the month in which any such notification is made by EAN.

Schedule 2

GUIDELINES FOR AGENTREZ USERS

EAN and its Corporate Affiliates, including but not limited to Travelscape LLC, do not supply travel services to Travel Agent for onward supply to customers. In relation to EU Merchant Rooms, customers contract with Travelscape LLC. Travel Agent shall adhere to the following: 1. Travel Agent shall not represent itself as acting on behalf of EAN or any EAN Corporate Affiliate.

2. Any advertising and promotional materials in relation to this Agreement shall be provided by or expressly aproved in writing by EAN. Travel Agent acknowledges that Travelscape LLC is the supplier of EU Merchant Rooms to customers, and that any monies collected from customers by Travel Agent in respect of such products is collected on behalf of Travelscape LLC. Travel Agent shall act consistently with this chain of supply in all aspects of its activity in relation to EU Merchant Rooms, including but not limited to customer bookings, customer invoicing, accounting for payments, applying local transaction taxes, and the use of advertising and promotional materials.

3. Travel Agent shall notify EAN of any and all customer complaints or queries made to it relating to the VAT treatment of EU Merchant Rooms and must not attempt to deal with such complaints itself. Affiliate shall also refer to EAN any enquiries from the tax authorities or any other government agencies in relation to the Agreement or the EU Merchant Rooms or any other travel products or services on which Marketing Fees are paid under the Program, and Travel Agent shall provide EAN with the opportunity to review and/or contribute to any response to such enquiries. 'VAT' means the tax imposed by Council Directive 2006/112/EC of the European Community and any national legislation implementing that Directive together with legislation supplemental thereto, or any similar sales or turnover tax in any country.Travel Agent must not misrepresent any of the terms of the contract relevant to services being provided under this Agreement including product descriptions.

4. Travel Agent shall provide final customers with the Booking Terms and Conditions that EAN makes available from time to time in relation to the relevant product prior to concluding the agreement and therefore prior to receiving the payment from the customer. It may do this by incorporating the exact wording of the relevant Booking Terms and Conditions into its own materials which it provides to the customer. 5. Travel Agent must provide to the Customer any other information required by law or industry regulation prior to the Customer concluding the contract.

Agent Login